In this essay I will attempt to show that the powers granted to the Federal Judiciary were excessive, that the creation of an all-powerful, unaccountable Supreme Court was a grave error that made the expansion of Federal power inevitable, and virtually limitless. I will then provide a brief investigation into the original meaning of the Commerce Clause. Last, I will argue that the harm created through Commerce Clause jurisprudence appears irreversible, having been upheld and applied by Justice Scalia and the liberal wing of the Court as recently as 2005. If Justice Scalia not only unwilling to overturn past Commerce Clause jurisprudence, but rather is willing to AFFIRM it, then there simply is no hope for repair.

1. Federal Judicial Power

Among the many errors in the Constitution, none has been as harmful as Article 3, Sec 2:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Anti-federalists, such as Patrick Henry, Samuel Adams, George Mason, opposed the ratification of the Constitution. In a series of essays known as the Anti-Federalist Papers, they warned that the myriad errors in the Constitution would lead to tyranny. Under the name Brutus, several of these papers addressed the dire consequences of the powers granted by Article 3, Sec.2:

The supreme court under this constitution would be exalted above all other power in the government, and subject to no control I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe the courts of law are put upon the most prudent establishment, they are on a very different footing.

Antifederalist #78

The power of this court is in many cases superior to that of the legislature. I have showed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution; and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it.

Antifederalist #78

[I]t is easy to see, that in their adjudication they may establish certain principles, which being received by the legislature will enlarge the sphere of their power beyond all bounds.

Antifederalist #81

2. The Commerce Clause

There has probably been no more insidious and far-reaching example of the Supreme courts ability to enlarge the sphere of Federal power than their rulings on the meaning of The Commerce Clause. It turned out to be the most gaping loophole in the entire Constitution, what law school professors refer to as The Everything Clause. It is so broad a power, that it now grants to the Federal Government the power to regulate activity that is neither interstate nor commerce. But what did it mean originally? Let us examine this question, beginning with the clause itself, from Article 1, Section 8:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

At the time the Constitution was drafted, the power to regulate interstate commerce was understood to mean the right to impose tariffs on imports and exports. Thats it. Nothing more. The Framers gave this power to the Federal Legislature in order to promote harmony among the states by preventing interstate trade wars. James Madison summed it up in Federalist #42:

A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquillity

The necessity of a superintending authority over the reciprocal trade of confederated States, has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction into other cantons, without an augmentation of the tolls. In Germany it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and the diet; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is, that they shall not establish imposts disadvantageous to their neighbors, without the general permission.

The Commerce Clause, then, had one distinct purposeto prevent states from imposing tariffs on imports and exports from other states, in order to provide for the harmony and proper intercourse among the States, as Madison characterized it. It was basically a free trade agreement among the states.

The Commerce Clause today, after nearly two centuries of Federal Judicial interpretation, goes far beyond its original meaning and intent. It now includes the power to prevent interstate tariffs and trade wars, it includes the power to regulate any activity, commercial or not, interstate or intrastate. It doesnt even have to have a substantial effect on interstate commerce. The court merely has to decide that there is a rational basis for thinking that an activity has a substantial effect on interstate commerce, for that activity to fall under the power granted by the Commerce Clause. It is, indeed, the Everything Clause.

How did we get so far from its original, limited meaning? By the powers granted to the Federal Judiciary in Article 3, Section 2. As predicted in Anti-Federalist Paper 82:

They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted. One adjudication will form a precedent to the next, and this to a following one.

Law students could rattle off the landmark cases: Gibbons v Ogden, Swift v United States, Wickard v Fillburn. Case by case, precedent by precedent, the meaning was stretched like silly putty. Meatpackers fell under Commerce Clause power, because although their activity was geographically "local," they had an important effect on the "current of commerce". Stockyards were subject to federal regulation, because they were a throat through which the current [of commerce] flows.

The climax of this expansion of Federal power was Wickard v Fillburn, a New Deal era case which proclaimed:

But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.

In Wickard, the government was asserting its power to restrict the production of wheat. They were trying to raise wheat prices by reducing the supply by fiat. They asserted that even if someone was growing wheat to feed their own animalsit was not moving across state lines, it was not being soldit still fell under the Commerce Clause regulatory power because it had a substantial effect on wheat supply generally.

And so there you have it. Not only had we drifted from the original meaning of the clausethat trade should flow freely between states. Wickard established that the power to regulate interstate commerce included activity that was not interstate, and that was not commerce. It only had to have a substantial effect on interstate commerce, whatever that means. More recently, even that was found to be too limited a power. Presently, the Court doesnt even have to find a substantial effect, but merely a rational basis for thinking there is a substantial effect.

3. Justice Scalia and Gonzalez v Raich

Which brings us to Justice Scalia, and Gonzalez v Raich. This case pitted the Justice Department of George W Bush against Angel Raich, and indirectly, the State of California. Raich was a resident of California, and under California state law, was legally permitted to cultivate marijuana for personal medical use. DEA agents intervened, destroyed the 6 marijuana plants, as part of an overall attempt to break up Calfornias marijuana co-ops and assert Federal marijuana laws. Raich sued.

The Justice Department argued that it had the power to regulate home-grown marijuana plants, even if they were not involved in any interstate commerce, indeed, even if they were not involved in any commerce. They based their argument on that old New Deal case, Wickard v Fillburn.

Here was a chance, one might have hoped, for the conservative justices to overturn Wickard! How can anyone serious about originalism support this absurd construction of federal power? Right? Wrong.

Not only did the court fail to overturn Wickard. It based its decision on Wickard, thus affirming it, and making it that much more unlikely that it will EVER be overturned. The decision was 6-3. The three dissenters Rehnquist, Thomas, and OConnor. The majority opinion was written by Justice Stevens, and joined by Kennedy, Souter, Ginsburg, and Breyer, and a concurring opinion was written by Justice Antonin Scalia.

Scalias explained his reason for writing a separate opinion:

I agree with the Courts holding that the Controlled Substances Act (CSA) may validly be applied to respondents cultivation, distribution, and possession of marijuana for personal, medicinal use. I write separately because my understanding of the doctrinal foundation on which that holding rests is, if not inconsistent with that of the Court, at least more nuanced.

And what was this nuanced difference?

Since Perez v. United States, 402 U.S. 146 (1971), our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories: (1) the channels of interstate commerce; (2) the instrumentalities of interstate commerce, and persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce.

The first two categories are self-evident, since they are the ingredients of interstate commerce itself. See Gibbons v. Ogden, 9 Wheat. 1, 189190 (1824). The third category, however, is different in kind, and its recitation without explanation is misleading and incomplete.

It is misleading because, unlike the channels, instrumentalities, and agents of interstate commerce, activities that substantially affect interstate commerce are not themselves part of interstate commerce, and thus the power to regulate them cannot come from the Commerce Clause alone. Rather, as this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congresss regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause.

Basically, he just thought they should toss in the necessary and proper clause. Other than that, he was in agreement. A nuanced difference, indeed.

Raich affirmed not just Wickard, but the long trail of Commerce Clause jurisprudence, which has extend[ed] the limits of the general government gradually, and by insensible degrees. Each case that formed a precedent to the next, and this to a following.

So if you cant trust Justice Scalia, the most famous originalist of the last several decades, who can you trust? It appears you can trust Justice Thomas, who stated in his dissent:

One searches the Courts opinion in vain for any hint of what aspect of American life is reserved to the States.

Conclusion

From this brief examination of the powers of the Federal Judiciary, the history of the Commerce Clause, and the willingness of even Justice Scalia (Et tu, Nino?) to adopt the most liberal constructions to reach a desired end, it appears to me that the Constitution will never return to any semblance of limited power. It is terminally ill, and will not recover. The fatal flaw was the awesome power granted to the Federal Judiciary. I will attempt in the future to explore what alternative to this Federal power could be devised in a future Constitution to avoid this fatal error.

Slamming Scalia for the Commerce Clause seems hardly fair since it's been used for Decades, if not since the war of recent unpleasantness (Civil War) to deal with issues between the states.

The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.

I think you meant to say “reversible.” What is evident is that as recently as 2005, the Supreme Court affirmed the body of Commerce Clause jurisprudence, and was joined by the second most “originalist” justice on the bench. If you don’t comprehend what that means, then you don’t understand the judiciary.

The greatest growth in this country’s influence and economy came when we were following the Constitution as written, before the New Deal era and following extension of the Commerce Clause and discarding the Tenth Amendment.

It will be extremely difficult to reverse, since reversal will mean undoing Social Security, Medicare, the EPA, the Department of Education, etc., etc. Desirable? Yes. Possible? It will take a President willing to veto any bill that violates those principles in which we believe and to appoint judges and Justices who will do the same.

This wasn’t a popular position in law school, but it is the only real reading of the Constitution to me.

BTW, As much as I love Ben Franklin his words of wisdom in your tagline are not well thought out. The Holy Saints never died of fasting and all they lived on was hope.

The current occupant of the White House's snake oil pitch he sold during the election and the theological virtue of hope couldn't be more antithetical in meaning. The former is straight from Hell and the latter is straight from Heaven.

Maybe Sarah Palin, Ronald Reagan, Ann Coulter, William F. Buckley, Russel Kirk and Newt Gingrich had a hand in it too. I dunno. It's possible. Conservatives are always at fault. Even when liberals do it.

The majority in Heller (composed by Scalia) is another decision that really bugs me. He completely and obviously misconstrued the 1937 Miller precedent (e.g., "Miller was convicted" is false. Miller's indictment was quashed! He was never even tried). As far as I'm concerned, SCOTUS is just another bunch of elitist hacks.

There is no logical remedy (set of rules, rewritten constitution, whatever) that will operate against dishonest, illogical hacks. Any set of words can be ignored or twisted to meet whatever outcome the "power man" desires.

Slamming Scalia for the Commerce Clause seems hardly fair since it's been used for Decades, if not since the war of recent unpleasantness (Civil War) to deal with issues between the states.

Scalia deserves whatever criticism he gets for Raich. It was clearly a case of outcome-based jurisprudence, especially when compared to Lopez.

I included him in the title in part as an attention-grabber (I'd like people to read my essay, after all), but in my view it is fair criticism and it goes to my larger point.

The power of the federal judiciary, and their methods (common law, stare decisis) make their errors virtually permanent, and the more times an error is affirmed, the more unlikely it becomes that it will be reversed.

The powers granted to the the Fed Gov via commerce clause jurisprudence are so monumentally far-reaching, it is critical to the survival of any semblance of limited federal power that they be reversed. If not, we're screwed.

The Commerce Clause is about to be severely tested by the current Administration, Senate and Congress in whether they can impose their health care laws upon the states. I consider that they do not have this right.

Even if the Court pulls together a majority opposed to federal health care legislation, they will do so in a limited way that does not undue the overall impact of the commerce clause--in short, it would be a political victory, not a judicial victory. Contrast Lopez and Raich and you'll see what I mean. They'll apply the law however they see fit to reach the desired end. This demonstrates the inherent flaw in the Constitution that created a judiciary that is more powerful than the legislative branch, and unaccountable for their errors. Scalia is the wrong target.

-- Have you given any thought to how this case compares with the states who want to sell guns made within that state thereby exempting those sales from federal control? --

Raich will be used to render Montana/Utah's attempts to make in-state weapons and ammo out of reach of the feds to be nothing but grandstanding. CA tried to make in-state pot legal, and that is not accepted by the Feds. There is a case on the books of a fellow with a homemade machine gun, probably never left his house, and he was convicted (upheld too) on federal charges.

There is no logical remedy (set of rules, rewritten constitution, whatever) that will operate against dishonest, illogical hacks. Any set of words can be ignored or twisted to meet whatever outcome the "power man" desires.

Logical remedy is going to be my next inquiry. I think the answer will be to not empower the hacks in the first place. That was the point of the anti-federalists. The Constitution created the hacks, the "power man", where there were none. There was no Federal judiciary, once upon a time.

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